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iPad v Galaxy Tab: did Samsung copy Apple?

Joseph Hanlon of CNET Australia says many companies have released products similar to the iPad.

In a showdown in the Federal Court on Monday, Apple accused Samsung of infringing 10 of its patents including the "look and feel" and touchscreen technology of the iPad. Apple sought injunctions preventing Samsung from selling or advertising the Galaxy Tab 10.1 in Australia - and demanded all of Samsung's stock be sent to it to be destroyed.

Samsung did not admit liability but bowed to Apple's demands that it not sell the Galaxy Tab 10.1 in Australia. The agreement stymied Samsung's launch plans, forcing it to cancel a media event for the tablet scheduled for next week.

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However, yesterday Samsung said it was going to release a modified version of the Galaxy Tab 10.1 for the Australian market "in the near future".

It did not say how this modified version would differ from the US model or how it planned to avoid infringing Apple's patents, but Samsung has committed to sending Apple three samples seven days before it puts them on sale. This would give Apple enough time to seek further injunctions against Samsung.

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It is understood Apple chose the US model to present in court this week because the so-called Australian version was not yet available and had not been publicly discussed by Samsung.

Florian Mueller, an intellectual property expert who has been intimately following the smartphone patent battles around the world via his blog, said the patents cited by Apple in this case would have to be declared invalid by the court or "Samsung won't be able to build a Galaxy Tab 10.1 that consumers want to buy".

The patents are so broad that they cover the basics of multi-touch gestures - both the hardware and software implementations - and functions like slide to unlock and list scrolling. Mueller said the fact that Samsung had agreed to hold back its launch of the Tab indicated it believes Apple's case has merit.

"As those patents stand, they would most likely prevent Samsung from providing capacitive multi-touch screens in general, or at the very least any workaround would result in a substantial degradation of the user experience," said Mueller.

"Apple's selection of patents is symptomatic of the problem of patent thickets, meaning that a particular technology can hardly be implemented without infringing on at least some of the relevant patents. The multi-touch user interface has given rise to one incredibly dense patent thicket."

Kimberlee Weatherall, an Australian intellectual property lawyer, blogger and academic, agreed with Mueller. She said while some of the patents in the case related to specific Apple features - such as the way that lists and websites scroll on the iPhone, including the bounce when you get to the bottom - others were far more general and covered most multi-touch gestures used on the screen.

"If that [patent] claim is valid, that would be quite a restriction on the look and feel of an alternative tablet," she said.

What's more, Apple could further delay Samsung's Galaxy Tab 10.1 launch by adding more patents to the list of potential infringements if it is not satisfied that the company has sufficiently modified the device.

Apple could target other competitors

Weatherall said the broad nature of some of the patents in Apple's case means it could sue or demand licensing fees from other tablet and smartphone vendors. It may be targeting Samsung first because it is its biggest threat.

"Perhaps Apple wants to take on one company with the multitouch patent to see if it's valid before taking on other companies," she said, adding it was unclear whether courts would allow such a "broad monopoly" on multitouch.

"Maybe Apple knows that if it takes on one or more of the other smartphone makers, it risks a battle almighty against the combined forces of all the phone manufacturers."

Samsung and Apple are suing each other in nine countries and similar patents are cited in Apple's US case. Apple has also gone after other Google Android competitors including HTC and Motorola.

Google executive chairman Eric Schmidt has previously accused Apple of responding to Android's success with lawsuits rather than innovation. "We have not done anything wrong and these lawsuits are just inspired by our success," he said last month, commenting on Apple's battle with HTC.

With a $US76 billion war chest, Apple is unlikely to back down and has accused Samsung of "stealing our ideas" and "blatant copying" in both tablets and smartphones. Apple's copycat claims range "from the shape of the hardware to the user interface and even the packaging".

Foad Fadaghi, a telecommunications analyst with Telsyte, said it was difficult to see how Samsung could resolve this issue.

"Without Samsung providing specifics of the differences [between the US and Australian versions of the Tab] and putting them to test in the courts, it's very difficult to determine how this situation will be resolved," he said.

A settlement is likely, lawyer says

But Australian patent attorney Mark Summerfield, who blogs on patent law on his site, Patentology.com.au, said it was unlikely courts would award Apple an injunction preventing sales of the modified Australian version.

He said any case could run for years but a settlement would likely be reached. This could involve Samsung paying Apple some sort of compensation.

Given that Samsung and Apple are in court over similar issues in the US, Germany, Britain, France, Italy, the Netherlands, Japan and South Korea, Summerfield said "this action in Australia is at best a strategic move by Apple, and at worst a mere sideshow, nothing more than a brief storm in a teacup".

"Long before any resolution in the Australian case, Samsung and Apple will settle all of their suits on a worldwide basis," he said.

In the US, Apple has applied to the International Trade Commission seeking to block US sales of various Samsung Galaxy smartphones and tablets. Today the ITC said was launching an investigation into Apple's claim and its request for a "cease and desist order".

Vodafone Hutchison Australia said yesterday it would not stock the Galaxy Tab 10.1 until the Australia court case is resolved.

Aussie Galaxy Tab 'still in production'

This morning Samsung maintained that the Galaxy Tab 10.1 was still on track to launch in Australia "in the coming months".

It would not comment on the differences between the US and Australian Galaxy Tab models, saying the latter was "still in production".

"We are confident that the Galaxy Tab 10.1 will not violate any of the plaintiff's patents," Samsung said.

"As with many of our products, both hardware and software features can differ from market to market. While this is a 10.1-inch tablet device, there are differences between the variant presented in the court hearing and the variant that will launch here in Australia."

Despite supplying a number of internal components for Apple's products - accounting for over $US5 billion in sales a year - Samsung has emerged as the company's key competitor in both smartphones and tablets. Its Galaxy S II smartphone has been compared favourably to the iPhone 4 while the Galaxy Tab 10.1 is regarded as a leading challenger to the iPad.

Any delays in bringing its new products to market will give a huge advantage to Apple, which announced last month that it had sold nearly 29 million iPads since they first went on sale in April last year.

Over 5m tablets in Australia by 2015

PriceWaterhouseCooper's annual entertainment and media outlook, released this week, reported that the number of tablets in Australia would balloon from 750,000 to 5.5 million in 2015.

Apple and Samsung are due back in the Federal Court for another hearing on the matter on August 29. Justice Annabelle Bennett will review the status of the case and set a trial date if necessary.

The dispute between the companies began in April when Apple sued Samsung in the US, claiming the Galaxy products "slavishly" imitated the designs and technologies used for its iPad and iPhone. A decision is scheduled to be made by the Distribute Court for the Northern District of California in mid-October.

Samsung retaliated with lawsuits in South Korea, Japan, Germany and the US.